THE PRINCIPLE OF LEGALITY IN PUNISHMENT
•The application
of the ius acceptum rule
to punishment is as follows: in the same way as a
court cannot find anyone guilty of a crime unless the conduct is
recognised by
statutory or common-law as a crime, it cannot impose a
punishment unless
the punishment, in respect of both its nature and extent, is
recognised or
prescribed by statutory or common-law.
•The application
of the ius praevium rule
to punishment is as follows: if the punishment to be
imposed for a certain crime is increased, it must not be
applied to
the detriment of an accused who committed the crime before the
punishment was
increased
•The
application of the ius certum rule
to punishment is that the legislature should not
express itself vaguely or unclearly when creating and describing
punishment.
• The
application of the ius strictum rule
to punishment is that where a provision in an
Act, which creates and prescribes a punishment is ambiguous, the court
must interpret
the provision strictly
Section 35(3)(n) of the
Constitution contains a provision which incorporates the nulla poena
rule. It provides that the right to a fair trial also includes the right
to the
benefit of the least severe of the prescribed punishments if the
prescribed punishments
for the offence have been changed between the time
that the
offence was committed and the time of sentencing.
THE ACT(CONDUCT OR OMISSION)
BACKGROUND
it was
stated on
previous slides that the four cardinal requirements of
liability for a crime are:
(1)an act,
(2) compliance with the definitional
elements,
(3) unlawfulness and
(4)
culpability.
In this
study unit we shall discuss the first of these requirements, and related
topics. In
legal literature the requirement of an act which corresponds with the
definition of
the proscription is often referred to by the technical expression act usreus.
Once it is clear that the type of
crime with which X is charged is recognised in our
law (in
other words once it is clear that the principle of legality has been complied
with),
the first requirement for determining criminal
liability is the following: there must
be some conduct on the part of X. By `'conduct''
is understood an act or omission.
`'Act'' is sometimes referred to as 'positive conduct''
or `'commission''(or its Latin equivalent commissio) and
an `'omission'' (or its Latin equivalent omissio) is
sometimes referred to as `'negative conduct'' or `'failure to act''.
``Conduct'', ``act'' and
``omission''
From a strictly technical point of
view the term `'act'' does not include an `'omission''.
An `'act'' is rather the exact opposite of an `'omission''. No general
concept embraces
them both. The two differ from each other like night and day,
because to do
something and not to do something are exact opposites. However,
one may
use the word `'conduct'' to refer to both of them.
To be
completely correct technically, one would therefore always have to speak of `'an
act or an omission'' or of `'an act or a failure to act'' when referring to
this first
basic element
of liability.
Thoughts
not punishable
Merely thinking of doing something,
or even a decision to do it, is not punishable. Before there
can be any question of criminal liability, X must have started
converting his
thoughts into actions. This does not mean that only the
completed crime, with all the harm already done, is
punishable. As will be seen, an attempt to commit
a crime is also punishable, but even then some act is required which
goes beyond
a mere idea or a decision to do something. Even uttering words maybe
sufficient
to constitute a crime, as is evident from the fact that incitement and
conspiracy are
punishable.
Act
must be a human act or omission
The act must be a human act; in
other words, the perpetrator of the act must be a
human being. In ancient societies
and during the Middle Ages, animals and even
inanimate objects, such as beams
which fell on people's heads, were sometimes
``tried'' and ``punished'', but
this cannot happen today in the South African (or
any other modern) legal system. (For
an example of the punishment of animals,
consult Exodus 21, verse 28.) A
human being can, however, be punished if he
commits a
crime through the agency of an animal, for example where he urges
his dog to bite someone (Eustace
1948 (3) SA 859 (T); Fernandez 1966 (2) SA 259 (A)).
Act
or conduct must be voluntary
An act or an omission is only
punishable if it is voluntary.
The
conduct is voluntary if X is capable of subjecting his bodily movements to his
will or
intellect.
If conduct
cannot be controlled by the will, it is involuntary, such as, for example
,when a
sleep-walker tramples on somebody, or an epileptic swings his hand
while having
an epileptic fit and hits someone in the face. If X's conduct is in
voluntary, it
means that X is not the ``author'' of the act or omission; it was then
not X who
committed an act, but rather something which happened to X.
The concept of a voluntary act
should not be confused with the concept of a willed act.
To determine whether there was an act in the criminal-law sense of the
word, the
question is merely whether the act was voluntary. It need not be a
willed act
as well. Conduct which is not willed, such as acts which a person
commits negligently,
may therefore also be punishable.
This does
not mean that a person's will
has no significance in criminal law; whether he directed his will
towards a
certain end is indeed of the greatest importance, but this is taken into
consideration only when determining whether the
requirement of culpability(and more
particularly culpability in the form of intention) has been complied
with.
Factors
which exclude the voluntariness of the act
The following factors result in the
conduct not being regarded as voluntary in the eyes of
the law, and therefore not qualifying as acts in the criminal-law sense of
the word. A Absolute force
The voluntary
nature of an act may first be excluded by absolute force (vis
absoluta)
(Hercules 1954 (3) SA 826 (A) 831 (G)). The following is an example of absolute
force:
X is slicing an orange with his
pocket-knife. Z, who is much bigger and
stronger than X, grabs X's hand
which holds the knife, and presses it, with
the blade pointing downward, into
Y's chest. Y dies of the knife-wound. X,
with his weaker physique, would
have been unable to defend himself, even
if he had tried. X performed no act
It was Z
who performed the act.
Involuntary conduct - absolute
force.. Z,
who is much bigger and stronger than X, grabs X's hand in which she happens to
hold a
knife, and
presses it,
with the blade pointing downward, into Y's chest, resulting in Y's death. X,
who is
physically much weaker than Z, is unable to
prevent this,
even if she tries. Does X commit murder or culpable homicide? No, because
there is no
voluntary conduct on her part.
This situation must be
distinguished from one involving relative force (vis
compulsiva),
where X is indeed in a position to refrain from committing the
harmful act, but is confronted with
the prospect of suffering some harm or wron gif he
does not commit it.
The following
is an example of relative force:
Z orders X to shoot and kill Y, and
threatens to kill X himself if he refuses to
comply with the order. If X then
shoots Y, there is indeed an act, but X may
escape liability on the ground that
his conduct was justified by necessity.
(The facts in Goliath 1972 (3) SA 1
(A) and Peterson 1980 (1) SA 938 (A) were
materially similar to those given
in the above example of relative force. Goliath's case will
be discussed below under the ground of justification known as
necessity.)
The crux of the difference between
absolute and relative force lies in the fact that absolute
force excludes X's ability to subject his bodily movements to his
will or
intellect, whereas this ability is left intact in cases of relative force.
Relative force
is therefore rather aimed at influencing X to behave in a certain
way,
although it remains possible for him to behave differently.
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